Erie County Surrogate's Court

Frequently Asked Questions (FAQ's)

The Surrogate’s Court is established in every county to handle cases involving the affairs of decedents, including the probate of wills, the administration of estates and trust proceedings. Family, Supreme, and Surrogate’s Courts have concurrent jurisdiction over guardianships of the persons and property of infants. Family and Surrogate’s Courts have concurrent jurisdiction over adoption proceedings.

Some Common Proceedings in Surrogate’s Court

Estate Proceedings:
1) Probate: The process by which a will is proved to the satisfaction of the Surrogate Judge to be the valid Last Will and Testament of the decedent, resulting in the appointment of an Executor who collects assets, pays the decedent’s bills and distributes the decedent’s property according to the will.
2) Administration: A procedure for appointing an Administrator of an estate of a person who died without a will, who is then responsible for collecting and distributing assets.
3) Voluntary Administration: A simple and inexpensive method of administering the estate of a deceased person whose assets in the decedent’s name alone do not exceed $30,000, for persons who died on or after January 1, 2009; or $20,000 for persons who died before then. Voluntary administration may not be used to administer real property.

Guardianship:
1) Guardianship over an infant’s (child under 18 years of age) “person:” A guardian is usually a family member who is granted authority to care for and make certain decisions for a child. Such decisions may include enrolling a child in school, arranging medical care for the child or securing government assistance, such as food stamps.
2) Guardianship over an infant’s “property:” Whenever a child receives money (usually $10,000 or more) through an inheritance, life insurance, personal injury settlement or some other means, someone must be formally appointed by the Court to safeguard these funds until the child becomes 18. Usually, a parent (the child’s “natural guardian”) is the person appointed “legal guardian” over these funds. These funds are held under the joint control of the Court and no withdrawal will be permitted without the prior order of the Court.
3) Guardianship over a mentally-retarded or a developmentally disabled individual’s person and/or property: Persons who are certified by at least two doctors as being unable to care for themselves because of mental retardation or developmental disability can have a guardian appointed by the Court to make decisions on their behalf.
4) Article 81 guardianships: In limited circumstances, the Court will entertain a proceeding under Article 81 of the Mental Hygiene Law to appoint a guardian for the person or property of an adult who becomes unable to care for some aspect of his or her person or property.

Adoptions:
1) Infant Adoptions: These are adoptions arranged directly between the parties or with the assistance of a private adoption agency.
2) Step/Parent or Remarriage Adoptions: This is an adoption in which the new partner or spouse of the birth parent or prior adoptive parent is adopting the birth parent’s or prior adoptive parent’s child.
3) Family Adoptions: These usually refer to grandparent adoptions.
4) Adult Adoptions: These are adoptions in which the person to be adopted is over the age of 18 years.
5) Foreign Adoptions: Many foreign countries are now finalizing adoptions prior to the new parents and children returning to the U.S. Although it is not mandatory to do a readoption here, adopting parents may wish to consider the benefit of having a U.S. birth certificate issued for their child.

Some Frequently Asked Questions (FAQ's)

Who may file an estate proceeding?
If there is a will, the person named as Executor or Executrix or, if that person is deceased or unable to act, the person named as Successor Executor/Executrix. If there is no will, a person who qualifies under the laws of intestacy may act.

What is a will?
A will is a written declaration of what a person wants done with his or her property upon death. A person who dies leaving a will is said to die “testate.” The law requires certain formalities for a will to be valid. A valid will allows for a transfer of both personal property (e.g. bank accounts, furniture, stocks, clothing) and real estate which are in the decedent’s name alone. It allows a person to name someone she trusts to be an executor of her estate and guardian over her children. It also can provide protection for family members, for example, by creating trusts in appropriate circumstances.

Where should I keep my will?
If a lawyer prepared your will for you, you may wish to discuss with your lawyer where to keep the original will. Generally, the original will should be kept in a safe place which will be easily accessible if it is needed. The Court has a fire-rated vault in which wills are stored for safekeeping. This service is free. Each will is kept confidential until the Court receives written notice of death, usually a certified copy of a death certificate. Upon receipt of proof of death, the court will open the will and it becomes a public document.

I am the Executor of a will. How do I get the will admitted to probate?
The original will and a certified copy of the death certificate need to be filed with the probate petition and other supporting documents in the Surrogate’s Court located in the county in which the decedent was domiciled (primary residence). There will be a filing fee based on the size of the estate. Estate proceedings can range from the relatively simple to the extremely complex. Because in many cases it may be impossible at the beginning of the process to foresee what questions or issues may arise, it may be advisable to seek the assistance of counsel. If you are going to proceed without a lawyer, start by calling the appropriate Surrogate’s Court for information regarding the necessary forms. However, Surrogate’s Court employees are prohibited by law from giving legal advice. Forms and instructions are also available at http://nycourts.gov/forms/surrogates.

What happens if my loved one dies without a will?
A person who dies without a will is said to have died intestate. Because the deceased person left no direction on how to dispose of the person’s assets, New York law provides for who will inherit the estate as the law assumes the person would want.

My mother left a very small estate. Is there an easy way for me to proceed?
If the value of the estate is under $30,000 for a person dying on or after January 1, 2009, and the decedent owned no real estate, a small estate proceeding may be filed. (The amount is $20,000 for persons dying before January 1, 2009.) The filing fee is $1.00. This proceeding is available for persons who died with or without a will.

My father died and the only asset is his house. Do I have to file a proceeding in Surrogate’s Court to get it turned over to my sisters and me?
Not necessarily. By operation of law, real property vests in the estate’s distributees at the time of death. Distributees are the persons entitled to share in an estate if there is no valid will. If your father died intestate (without a will) and was not survived by a spouse, the property is owned by you and your sisters (as well as the children of any predeceased siblings of yours) at the time of his death. You should contact the tax office to see what its requirements are to list you as owners. You may also wish to consult a real estate attorney to prepare a deed to make the title to the property "cleaner." If he died testate (with a will), the property would be devised as set forth in the will and a probate proceeding may be necessary.

My mother died in a nursing home. I was told that I must file a proceeding in Surrogate’s Court to obtain the money in her personal account. What proceeding do I file?
If that is the only asset and the value of the total assets is under $30,000 ($20,000.00 for a person dying before January 1, 2009), you may file a small estate proceeding. If over the relevant monetary amount, you must file a full administration or probate proceeding.

My spouse died in a car accident. I have hired a lawyer to sue the driver of the other car. There are no assets other than the lawsuit. Does a proceeding need to be filed in Surrogate’s Court?
Yes. A probate proceeding or administration proceeding will be necessary. The Executor or Administrator can then bring the lawsuit in the appropriate court. When a settlement is reached or a trial has been concluded, a proceeding should be brought in Surrogate’s Court to allocate and distribute the proceeds to the proper persons.

How do I get a copy of a death certificate?
The funeral director usually purchases several originals for your use. You may obtain them from the Vital Statistics/Death Records Department in the municipality in which the person died.

How do I obtain guardianship (control) over a child and a child's property?
The Surrogate’s Court can provide forms and help on how to fill them out. These forms and instructions are also available on the following website: http://nycourts.gov/forms/surrogates. You will need to file a copy of the child's birth certificate and other required information. Then an investigation will begin and other procedures will be necessary. Most commonly, these proceedings are processed on the papers submitted to the Court, without the necessity of a formal hearing. However, in some circumstances, the court may require a hearing. You may wish to consult an attorney about how to proceed with a petition for guardianship.

How can I obtain information about an adoption?
All New York State adoptions are sealed records. You must obtain a court order to open any adoption file after it is sealed at the time of the adoption. Inquire with the Surrogate’s Court (or Family Court, if the adoption was approved there) in the county where you believe the adoption happened. Please be aware that advice and other assistance from an attorney may be needed for success. The Adoption Registry in Albany allows the adoptive child to receive non-identifying information. It also allows the birth parents the opportunity to register so there would be a chance that they will be matched and, with consent from each side, can contact each other. The telephone number for the Registry is (518) 474-9600.